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February 19, 2013

Is Georgia likely to carry out tonight's scheduled execution of Warren Lee Hill, who is likely mentally retarded?

I have not blogged much about the possible execution of Warren Lee Hill, which is scheduled to be killed by the state of Georgia later tonight.  Given the considerable evidence that Hill is likely mentally retarded and that his lawyers now have more doctors prepared to testify to this fact, I had thought there was a real good chance that a federal court would step in and now reconsider Hill's claims that he is not constitutionally eligible for execution under the Supreme Court's 2002 Atkins ruling.

However, as detailed via this lengthy Atlanta Journal-Constitution article and this new New York Times posting reveals, we are now just hours away from Hill's execution hour and all systems in Georgia seem a go for this punishment.  The NY Times piece provides this update of the latest case developments:

Warren Lee Hill, an intellectually disabled inmate with an I.Q. of 70, is scheduled for execution today in Georgia at 7 p.m.

In 2002, the Supreme Court banned capital punishment for the intellectually disabled. But, alone among the states, Georgia requires a defendant to prove such a disability beyond a reasonable doubt — a heavy a burden of proof because it is so easy for a state to cast doubt on evidence concerning mental capacity.

Last Thursday, Mr. Hill’s lawyers announced what should be crucial news in the case. The three experts for the state who said in 2000 that Mr. Hill did not meet the criteria for intellectual disability have reversed their views....

These reversals of opinion are “the equivalent of an exoneration,” as Mr. Hill’s lawyers have explained: experts for Mr. Hill and for the state now agree that he is intellectually disabled beyond a reasonable doubt.

Last Friday, the lawyers asked the Georgia clemency board to review his case and presented the new evidence to a state trial judge in Georgia, in a plea for a stay of execution.  On Monday, when the state trial judge dismissed the plea, the lawyers immediately appealed to the Georgia Supreme Court.

I have long thought it problematic that the US Supreme Court has been willing, for now more than a decade since its Atkins Eighth Amendment ruling, to let each individual jurisdiction make up its own distinctive procedures for implementing Atkins.  And I have long believed that SCOTUS would have to take up this issue if and when a particular defendant appears headed to execution despite strong evidence of mental retardation.  Thus, I continue to think SCOTUS will jump in at the last minute if the Georgia clemency board and the Georgia Supreme Court both deny Hill any relief or any stay this afternoon. But time is now sure running short for Hill and his lawyers.

UPDATE: Just after hitting publish on this post, I saw this new development via the local papers:

The Georgia Supreme Court has voted 5-2 to deny Warren Hill a stay of execution.

Chief Justice Carol Hunstein and Justice Robert Benham dissented from the state Supreme Court’s decision to deny Hill a stay of execution.

Hill’s attorneys have yet to hear from the State Board of Pardons and Paroles on Hill’s most recent plea for clemency.  Hill also is asking the U.S. Supreme Court to stay his execution.

February 19, 2013 at 03:33 PM | Permalink

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Death penalty reformist, residing near the Georgia Diagnostics and Classification Prison, Jackson, Georgia.

Posted by: Paul Douglas Hale | Feb 19, 2013 3:53:47 PM

While I usually see mental retardation as mitigating evidence, I can't imagine another sentence being adequate. As he was already serving life at the time of the prison killing means he will not be punished unless he is executed.

Posted by: MikeinCT | Feb 19, 2013 5:37:59 PM

I guess various questions arise for me.

[1] If these doctors had the same views originally as they had now would he be mentally retarded (they say he is "mildly" so now ... sounds like a borderline case five justices might feel less compelled to take) "beyond a reasonable doubt."

[2] Is that test -- unique to GA according to the article -- adequate in the opinion of Prof. Berman for federal constitutional purposes. If not, what should be the test or procedure. Atkins notes it followed the rule applied in insanity cases. Is this also a problem or is there a unique concern here?

[3] Once the criteria is met, is there a sort of "res judiciata" that akin to a guilty sentence can only be reversed in a crystal clear case that if anything is tougher than the original one? Simply put, how would these "reversals" be handled? Should there be a special federal habeas proceeding or something open for special cases?

---

[4] Even if he killed in prison (aside: not a very sympathetic victim, but still a person the state protects), does the person have the liability to warrant execution? Compare, e.g., to someone who is judged insane, even if s/he killed in prison.

[5] Are there privileges that even those with LWOP obtain that can be taken in such a case.

Posted by: Joe | Feb 19, 2013 6:54:28 PM

The 11th Cir. issued a temporary stay "minutes" before his execution:

http://www.foxnews.com/us/2013/02/19/georgia-death-row-inmate-set-to-be-executed-amid-debate-over-mental-disability/

[the Fox News report notes the family of the victim now supports his case ... not sure how some here would take that though]

The USSC -- without dissent -- has rejected a stay.

Posted by: Joe | Feb 19, 2013 7:29:27 PM

Welcome to the Twilight Zone. This family patriarch dispatched a murderer in prison with a nail studded board. Could the Harvard Law grads know how to obtain such a tool of capital punishment in maximum security wing? As a result of his privileging by the lawyer dumbass, he can now serve as mass executioner to 100's ofbad guys. He now has absolute immunity for all the murders he wants. Thank the lawyer dumbass.

Posted by: Supremacy Claus | Feb 19, 2013 7:51:42 PM

http://www.ajc.com/news/news/local/georgia-court-denies-hill-stay-of-execution/nWShm/

So much for the rule of law. Yet again, we see a bunch of federal judges flouting the law and staying an execution. This guy has had his full round of habeas, a bevy of state proceedings. It's time for Georgia to be able to enforce its criminal judgment without interference from capital murderer coddling judges.

What's even more disgusting is that this guy had a bunch of time while his state appeals were going to re-litigate his alleged mental retardation. But no, we get a stay on another last minute appeal.

State attorneys general should now insist on physical service of papers. If the court ordered stay isn't physically served, then it's just TFB.

Lawless federal judges. They ought to be ashamed of themselves. Georgia's AG should criticize these lawless hacks mercilessly.

Posted by: federalist | Feb 19, 2013 8:53:49 PM

"http://www.ajc.com/news/news/local/georgia-court-denies-hill-stay-of-execution/nWShm/

So much for the rule of law. Yet again, we see a bunch of federal judges flouting the law and staying an execution. This guy has had his full round of habeas, a bevy of state proceedings. It's time for Georgia to be able to enforce its criminal judgment without interference from capital murderer coddling judges.

What's even more disgusting is that this guy had a bunch of time while his state appeals were going to re-litigate his alleged mental retardation. But no, we get a stay on another last minute appeal.

State attorneys general should now insist on physical service of papers. If the court ordered stay isn't physically served, then it's just TFB.

Lawless federal judges. They ought to be ashamed of themselves. Georgia's AG should criticize these lawless hacks mercilessly."

Settle down, S.O'B., I'm sure you'll get plenty of corpses by the end of the year. One mentally retarded guy without a needle in his arm is no reason to throw a fit. Even a death-worshiping sociopath like you should be able to see that. Have a good night.

Posted by: The Death Penalty Sucks. | Feb 19, 2013 10:36:09 PM

Does anyone have the order? What are the grounds for this? The 11th Cir already rejected the Atkins challenge to the beyond a reasonable doubt standard, and the Supreme Court denied cert . . .

Posted by: sashokJD | Feb 19, 2013 11:14:41 PM

TDPS: But he is not mentally retarded. This stay will result in more prison murders has the foreseeability of planetary orbits, as in the sun will rise in the East and set in the West. The modern, non-simplistic definition of MR:

The AAMR Definition of Mental Retardation
Mental retardation is a disability characterized by significant limitations both in
intellectual functioning and in adaptive behavior as expressed in conceptual, social,
and practical adaptive skills.
This disability originates before age 18.

(http://www.heionline.org/docs/training/introduction_to_mental_retardation.pdf)

The IQ test is validated to predict school book learning performance. Daniel has addressed the narrow validation field of these exams. The commentators here would have high scores on the IQ test, and lo and behold, also high grades in school. However, if you had a practical test of adapting to maximum security unit of a prison, most would come out as quite mentally retarded.

If your father died, would your family select you as its new patriarch? Could you adapt to a roommate convicted of murder the way he did? Could you obtain a nail spiked board and sneak it into you cell on a maximum security unit? Please, tell us how. He outfoxed maximum security measures within hours, after being offended by the murder victim.

End all judicial immunities from tort liability. The highly foreseeable future murder victims of this defendant should be able to reach the personal assets of the judges. If immunities are not lifted by statute, then violence against these judges has full justification in formal logic. The contrapositive of a true proposition is always true. If you believe that torts liability is a civilized substitute for violent retaliation (If A, then B is true.), then immunity justifies violence (If not B, then not A, is true.) The defendant has killed twice that we know of, once in prison. There is no justification for immunizing these careless, cold hearted, rent seeking biased judges.

Posted by: Supremacy Claus | Feb 20, 2013 2:05:42 AM


TDPS --

Your words to federalist: "One mentally retarded guy without a needle in his arm is no reason to throw a fit. Even a death-worshiping sociopath like you should be able to see that. Have a good night."

I think you left out "bloodlusting Nazi," "barbaric hoodlum," and "racist bastard." On the other hand, who says you're finished?

And how much criticism, even of the mild variety like "not nice," do you have for the lovely Mr. Hill?

Not a word! Imagine that. And don't bother with any back-and-fill now. You have made your preferences clear. At least you don't hide the ball as to where your sympathies lie.

Posted by: Bill Otis | Feb 20, 2013 2:40:27 AM

TDPS is just frustrated. By the facts of the case. I feel his pain. I am very frustrated by the stupidity of the lawyer profession. If anyone is retarded in this case, it is the appellate judges.

Posted by: Supremacy Claus | Feb 20, 2013 4:49:33 AM

It's high time to recognize mental retardation for what it is: an aggravating factor. Because of their subaverage intellectual functioning, retarded criminals cannot be deterred. And because of the adaptive deficits of the retarded, conventional incapacitative measures in prison are likely to protect other inmates and staff only imperfectly. The DP is the only way to ensure that the mentally retarded don't kill again.

Atkins got one thing right: Retardation is a special consideration. Unfortunately, Atkins got the result backwards. Retardation should be a per se reason for execution, not a bar to it.

Posted by: Otis Bill | Feb 20, 2013 3:08:56 PM

Otis Bill --

If you want to remain anonymous, that's up to you. I would appreciate it if you would not use a variant of my name, as that can be confusing. I don't know who you are and I do not necessarily share any of your views.

Posted by: Bill Otis | Feb 20, 2013 4:03:39 PM

This is a close case as we can see by all the flip-flopping the last 10 years. Who knows how it will turn out. But, Federalist raises a good point. Hill got his execution stayed in July of last year by the Georgia Supreme Court to consider the LI challenge. Why did his attorneys wait until the execution was scheduled 9 months later to have the doctors issue new opinions on Hill's "retardation" and present it to the state judge, Georgia Supreme Court and now the 11th Circuit?

Barkett and Marcus originally granted relief to Hill. Hull dissented. The case went enbanc and Hull wrote the majority opinion denying relief by a 8-3 vote with Barkett, Marcus and Martin dissenting.

Posted by: DaveP | Feb 20, 2013 4:06:05 PM

DaveP --

Did he do it?

Yup.

Did he do it before, too?

Yup.

Has this retardation issue been fully litigated for years?

Yup?

Can allegedly new evidence be found (manufactured?) time after time after time, from here to eternity?

Yup.

OK then, time to get on with it.

Posted by: Bill Otis | Feb 20, 2013 4:24:11 PM

Bill Otis
I agree. But I am fascinated by all the back and forth positions in this case. I am surprised that Georgia didn't ask the full 11th to vacate the stay. Instead, they went to SCOTUS.

Does anyone know about the stay by the Georgia Court of Appeals? What issues were raised and if it is LI related how come they didn't go to the superior court first?

Posted by: DaveP | Feb 20, 2013 4:30:03 PM

Otis Bill . A name is a trademark, even if not registered. I understand, you are being funny. However, please, consult, your intellectual property lawyer before continuing to use it.

Posted by: Supremacy Claus | Feb 20, 2013 6:02:30 PM

The Georgia stay regards lethal injection protocols.

http://www.theatlantic.com/national/archive/2013/02/warren-lee-hill-and-his-cause-live-to-fight-another-day/273319/# [quotes 11th Cir. stay too]

A search of various reporting on the matter doesn't clarify to me the why this specific route was used.


The state relied on certain experts. The experts swear now that he is mentally retarded. Are they lying? Are their opinions now (but not then?) not competent?

As to why they waited, why does Congress wait to the tax cuts expire before doing something about it? When you have time limits, you often wait until the last minute. Not that this is always the only reason for such delays. I'm sure this is not the only context something like this is done with lawyers. I doubt those opposed here would be enthused about overturning the findings if the lawyers brought them nine months ago.

Anyway, the order flags the issue & asks for proof the delay is acceptable.

Posted by: Joe | Feb 20, 2013 6:10:53 PM

Joe --

"The state relied on certain experts. The experts swear now that he is mentally retarded. Are they lying? Are their opinions now (but not then?) not competent?"

Do you have any interest in how it came to pass that they chime in now? Were they paid for their most recent "review"? How much? Do you think one might be curious about that? Are you?

"As to why they waited..."

They waited to gain strategic advantage and to game the system. If you're saying that this is characteristic of defense lawyering, you are, unfortunately, right on the money.

Posted by: Bill Otis | Feb 20, 2013 8:37:47 PM

The doctors have an ethical obligation to correctly decide the matter and swore to it. One noted he was a young inexperienced sort back then and his more mature expert opinion changed. Notable that the other two agreed. Others perhaps have seen a discussion on what their statements were. When all three agree, it helps the cause, but the judges can decide.

Experts, for the state and defense, are paid. Should prosecution experts not be believed because they are paid? Are you suggesting they are violating their ethics because of this? Their judgment is colored by it? Serious charge. Perhaps, experts should not be paid at all. Not that I know if they were paid or how much they were paid here.

Using everything the system has to offer is something each side does. For instance, police use tricks to get people to confess. Prosecutors have their own strategies, taking advantage of whatever is strategically advantageous. Defense lawyers here can point out some that they deem less than ideal.

Posted by: Joe | Feb 21, 2013 9:38:07 AM

It is not possible to have a rational discussion with someone who thinks the state should take the life of a mentally retarded person.

Posted by: James Turner | Feb 21, 2013 12:34:07 PM

Joe --

1. "Perhaps, experts should not be paid at all. Not that I know if they were paid or how much they were paid here."

Correct, you don't know. And you evince no interest in finding out, either. How uncurious of you.

2. I see you don't deny -- and instead implicitly concede -- my assertion that the defense lawyers waited in order to gain strategic advantage and game the system. To the minimal extent you defend this sleazy tactic, the defense consists of that old second grade stand-by, "BUT EVERYBODY DOES IT!!!"


Posted by: Bill Otis | Feb 21, 2013 12:39:38 PM

The latest update is that the USSC, this appears to me a bit irregular, denied a request to vacate the stay. I have personally not seen such an order before now.

Bill, if they were paid, I would be fine if someone provides me the information. I have read various things on the case & did not see the matter addressed. Again, since experts on both sides tend to be paid, I'm unsure where this takes you.

No, I don't deny that BOTH SIDES do various things, some which might be seen as "gaming the system" or "sleazy" or whatever, and yes, would reaffirm that both sides do it, even though you repeatedly talk about one side. Given you were a former prosecutor, this isn't you know surprising.

Posted by: Joe | Feb 21, 2013 2:05:26 PM

[Again, I don't actually know WHY they waited, though waiting to the last minute is a typical tactic of lawyers of all varieties among others.]

Posted by: Joe | Feb 21, 2013 2:11:21 PM

Joe --

The reason I talk about the defense lawyers gaming the system with this wonderfully timed last minute motion has zip to do with my having been a prosecutor. It has a lot to do with the fact that it's at the heart of this story.

You say both sides do it. Well, no, they don't. Delay in criminal cases, capital cases and others, is virtually always engineered by one side only, that being the defense.

One reason for this is that delay allows more time for the defendant's gang to assassinate government witnesses. Do you deny it? Can you cite any case in which the prosecutor had witnesses assassinated?

Posted by: Bill Otis | Feb 23, 2013 2:37:49 PM

James Turner --

"It is not possible to have a rational discussion with someone who thinks the state should take the life of a mentally retarded person."

It is not possible to have a rational discussion with someone who thinks the state should keep a repeat killer who has been legally sentenced, and who has had years of review of his retardation claim, in a position where he can kill yet again.

Posted by: Bill Otis | Feb 23, 2013 2:41:46 PM

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